August 12, 2014
Kalyan Banerjee speaks on National Judicial Appointments Commission Bill 2014 | Transcript
Hon. Chairman, I express my highest regards and my grateful thanks to the hon. Law Minister. Within a very short time, he has brought this Bill. It was needed for long years together.
During the UPA-II regime, one of the hon. Law Ministers wanted to bring a Bill, akin to this. I had a talk with him and at that time also I supported it. I had expressed our Party’s view at that time. My Party is having the highest respect for the judiciary. We believe that because of the Supreme Court’s functions during the last 64 years, by interpreting various constitutional provisions, the democracy of this country has been strengthened. I believe in that.
I can remember and I can recollect the first judgment of the Constitution Bench, in the A.K. Gopalan’s case, wherein the Supreme Court has interpreted Chapter-III of the Constitution of India. What are the Fundamental Rights of the citizens of the country? I feel proud, being a Member of the Calcutta Bar that in the first Constitution Bench, two Judges, one a great Judge Justice Biren Mookerjee and the other one, the great Judge, Justice S.R. Das were the Members of that Constitution Bench. I feel proud when the judgment of the second Constitution Bench has come for interpretation of extradition. The Bench had Justice Biren Mookerjee, Justice S.R. Das and Justice Vivien Bose.
Great judges have come and great judges have discharged their functions. It is this august institution’s preliminary duty and Constitutional obligation to legislate laws. That is the will of the people of the country. The Supreme Court is there to interpret the provisions of the statute and the Constitutional provisions. By reason of article 141, it is binding. But never was it the expectation of the makers of the Constitution that judiciary will, by the process of interpretation of the Constitution or other provisions, legislate laws. However, of late, in great number of matters, not only the Supreme Court but even the High Court judges have started doing that.
Collegium system was not introduced by this Parliament. Collegium system is an introduction of the Supreme Court. It is a law laid down by the Supreme Court, not by reason of its interpretation of Constitutional provisions but with an idea that there may be political influence in the appointment of judges pre-1993. Therefore, the collegium system was born. And collegium system has really usurped the entire set of functions of the political executive. With great respect to Supreme Court I would say that it has reduced the status of the political executive to that of a mere clerk. This system has been going on right from 1993.
We were greatly shocked when a judge like Chittatosh Mookerjee was superseded and was not brought to the Supreme Court. We are greatly shocked when Justice Bhaskar Bhattacharjee, who is the Chief Justice of Gujarat High Court, has not been brought to Supreme Court. The reason is that when the then CJI was visiting an institution in Gujarat, being the Chief Justice of Gujarat High Court Justice Bhattacharjee did not attend that function. Therefore, the collegiums had rejected his case. But Justice Bhattacharjee’s argument was, how could he go when he was dealing with a case relating to that institution?
A judge who never met any lawyers after he became a judge, who never attended a social function after he became a judge, a judge who was all the time in Kolkata was the most impartial, one of the most honest judges of the country, has been superseded because of the whims of the collegium.
This collegium system should go. The time is ripe for this. We have to substitute it. We have to substitute it under compulsion. Our experience shows that this is needed to be done. Not only that, there is not a single area where you will find that the law would be laid down by me for my appointment or my colleagues’ appointment. But the Supreme Court has laid down the law as to which way their appointments would be made. It is very unfortunate.
Sir, I have seen a judge who was appointed to Calcutta High Court, Mr. Moily was talking about briefless lawyers becoming judges. I am talking about a judge who never delivered a judgment in open court, not at all during his tenure as judge. Whenever a big matter is being heard, a lawyer used to sit all the time and used to take notes. That judge used to deliver judgment after preparing for it at home. He never delivered a single judgement in open court. This is a product of the collegium system.
Sir, I wanted to know earlier also what the system for appointment of Supreme Court judges was. Is it by seniority? Is it by merit? Is it by quota? What is that, I could not understand at any point in time. What is the Supreme Court trying to say regarding their appointment, I never understood that. …
I do not mind if a Judge from Guwahati High Court is appointed; I do not mind if a Judge from Punjab and Haryana High Court is appointed but I am asking a question. If a 2001 Judge of Guwahati High Court is appointed to the Supreme Court, why is a 1996 Judge of the Calcutta High Court being superseded? What is the basis? Is it all-India seniority? Is it all-India merit? Why would one High Court have four or five Judges in the Supreme Court when another High Court would have even a single Judge in the Supreme Court? It depends who is the CJI. If I am the CJI, I will bring Judges from my State; if you are CJI, you will bring Judges from your State. This is not the idea and concept ever dreamt by the Constitution of India. Courts criticise the appointments every day and strike down appointments every day. Why is there a non-transparent system for appointments of the High Court Judges? Why is it that sometimes a Judge or advocate who is most junior – maybe able, maybe sincere, maybe educated – is appointed first and other seniors are not given appointment? Those seniors are accepting the appointment of that Judge. That is the practical position in our country. I have a great respect for Shri Moily. He was asking why these persons are appointed. There is no transparent system. If I know the senior Judges and if I enjoy the blessings of the Chief Justice and senior Judges, my name will be recommended. If someone does not enjoy those blessings but is a good lawyer, his name will not be recommended. One has to run and one has to keep a good relationship with the Judges; then his name will be recommended. This system has to be changed and the change has been brought in.
I am really happy. Today is a historical day in this country when this Bill is being introduced. It is a historical day. I am appreciating the way the things have been taken up so urgently. It has been felt urgent by the hon. Law Minister and I felt it.
I spoke about Bhaskar Bhatttacharya. Do you know, hon. Law Minister, that when he was superseded the Gujarat High Court Bar Association went on strike? He belonged to our institution but after going to Gujarat, within one year, he earned that much of respect from the Bar that the Gujarat High Court Bar Association went on strike. Why was Justice M.B. Shah of Bombay High Court who belonged to the Gujarat superseded? Can anybody tell the reason? Has anybody even known why competent judges have been superseded? Nobody knows whose case will be considered; nobody knows whose case will be rejected. Nobody knows about it. I talked about Bhaskar Bhattacharya whose reputation is very high. Nobody can say why he was superseded. That is the reason I am asking this. Is there a quota? Do you have any quota for Kolkata, Mumbai, Delhi and Gujarat and so on? Is there any quota that when a Judge is being superseded another Judge from that very State is being appointed to fill that position in the Supreme Court? Is there any quota? What is your idea to fill up the post of Supreme Court Judges? Is it on the basis of all-India seniority? Is it on the basis of merit? If merit, how will you consider merit? We have to understand that. I have read in the newspaper that the hon. CJI was in great shock regarding the attack on the collegium but I must humbly put a question here. Why has the CJI not risen to the occasion when there are large numbers of complaints against judges. Why has the CJI not risen to the occasion when lawyers have said that judges are not discharging their functions? The CJI is not only for discharging his functions from 10 a.m. to 5 p.m. in the Judiciary. If he is the custodian of Indian Judiciary, his obligation is to see whether all the Judges of the Supreme Court and the High Courts are functioning properly or not. Today what is happening?
This institution is being attacked by the Judiciary every day, without any rhyme or reason. I do not mind, if an MP with a criminal background is proceeded against, according to the Cr.P.C. I have no objection to that. If there is no issue and if a judge goes on commenting that the MPs should discharge their functions in one way or the other, what should be the role of an MP and what should be the conduct of an MP, then I am shocked. I am not to be treated like that; I am not to be said what I have to do. Whatever I have to do, I have to do as per the Constitution and as per the rules; and I am not to do as per the diktat of any Judge of the Supreme Court or the High Court.
My experience is this. It has become a fashion of the day, from the High Court to the Supreme Court, without any rhyme or reason, to attack this institution, as if we have committed lot of crimes by coming into politics, as if we have committed crime by becoming a Member of Parliament. Black sheep is everywhere; a few black sheep is there in the Judiciary and a few black sheep is there in the politics too; black sheep is not only in politics; black sheep is in Judiciary also; but the number may differ. If one institution does not give respect to another institution, then that institution should also not command respect from the other institution. Respect should be mutual; respect should be given respect and taken. It is based on reciprocity; one has to reciprocate it.
So far as the legislation of a law is concerned, supremacy and primacy is there with the Parliament and it is not with others; they should not travel beyond their jurisdiction. It has become a fashion now. All are going on the basis of imagination. For example, I am saying this. If an MP or an MLA of the Ruling Party commits any crime, then the assumption is that the Prime Minister is involved or the Chief Minister is involved. Everything is imagination. If that is so, why the people at large will not think that if someone who has worked with me as a junior and if I argue before him, then the Judge is also influenced, because of my appearance. Dr. Thambidurai was speaking on this.
Mr. Minister, you have brought a very historical Bill. If you really want to improve the performance of the Judiciary and if you really want to strengthen theJudiciary, please do not keep any Judge who are appointed to the High Court in that State, and make a transfer. Transfer should be not for name-sake. Transfer would be there, after every 3-4 years. Today, kindly give mesome more time. Kindly allow me to speak.
Nobody is there in a sensitive post for more than 3-4 years; then, why in a sensitive post in a High Court, a judge would be there for 10-12-14 years together? Is this an analogy? If highly responsible IPS and IAS officers are being transferred, if they remain in a sensitive post, after every three years, why a judge will not be transferred? He should be transferred. In the name of Public Interest Litigation, what is going on? Today, the judges do not discharge their original function of disposing of the civil and criminal matters. If there is a PIL, they are very happy because their names would appear in the first page of the newspapers, with photographs. I will request the Law Minister to bring a law to regulate the PILs. I am not against PIL. But he should bring a law having a provision which should state that in the case of PIL, neither the name of the party, nor the name of lawyer nor the name of the judge would be published and none of their photos would be given; then you see how the PILs are responded to. I am shocked when this institution is attacked by the Judiciary without any reason.
The hon. Law Minister in his speech has given an idea. Our hon. Chief Minister, the Leader of our Party, has communicated and appreciated your will in a letter. She has given a small rider. Kindly consider that rider. Under the Constitution of India a Governor cannot function independently except under Article 356 of the Constitution where it has been provided that the Governor would submit a report to the President of India. Except under Article 356, the Governor has to act with the aid of the Council of Ministers headed by the Chief Minister. You have made a provision here. A Governor cannot function independently. It will be ultra vires. You are going beyond the Constitution. You cannot touch the Constitution like this. The Governor has to act with the aid of the Council of Ministers. You have come across cases where the Governor has acted without the advice of the Council of Ministers.
I am not on Telangana Bill. I am on a very larger issue. Kindly do not try to mislead me today. I have said that today is really a historic day for this country when the total system of the judiciary, which was required to be changed by passage of time, by decades of our experience, is going to be changed. The time has come to change and you are coming up with that. I am very happy today. I have so many things to say but I have a little time at my disposal.
My institution is being criticized by the Indian judiciary every moment simply because we are politicians, we are Members of Parliament or Members of the Legislative Assemblies. I have hundred reasons to criticize the judiciary but I am not doing that. I have respect for the system. I want the Indian judiciary to be strengthened. I want the Indian judiciary to maintain its dignity. I want Indian judiciary to get respect from 130 crore people of this country because our democracy is based on that. Therefore, I would request you to go into the details as to how the appointment of Supreme Court judges would be made. What is the merit? Is it inter-State seniority, All India seniority or State-wise seniority that would be considered? If it is State-wise seniority, the system will be broken. I do not mind All India seniority but you will have to strike it somewhere. I do not mind if advocates are appointed directly to the Supreme Court. It is a great product. I am very candid in saying that Justice Nariman is one of the best constitutional interpreters of our country. I do not know whether justice Lalit has become a judge or not but he is one of the best criminal lawyers that we have produced. I would like to know how many posts you are keeping for direct appointment. Does it depend on the CJI? One CJI will say that six posts may be filled directly. The other may say there will be no appointment made from the Bar Council. I would like to know the guidelines in this regard. You can specify the number of appointments to be made from the Bar Council. Let it be 4, 10 or all. I do not mind but people must know how many judges will come from the High Court or how many will be recruited directly from the Supreme Court Bar.
I have another small request to make. You come from Patna, the State of Bihar. I know you are having the same pain that I have. The Supreme Court of India at Delhi has become a very costly affair for the litigants. The fee of the Supreme Court lawyers varies from Rs.5 lakh to Rs.15 lakh. What is this? Kindly destroy their monopoly. Please set up Circuit Benches in different regions. If you do it, you will be achieving two objects. One of the objects is that justice has to be delivered at the door-step of the litigant. You will achieve this objective. You will be achieving another object that the litigation is not expensive for the litigants. I will not be minding it if you bring a law for regulating the fees of the lawyers. I have not made a research in this regard but I need it. In my State what I have to do is that with the blessings of my leader, Kumari Mamata Banerjee, I had fought cases for my Political Party and for my litigants. In one year, I had to do 2000 cases in criminal courts. I know the pain of the litigants better than anybody else here. I know what the real problem is when they have to go to judiciary. Therefore, you bring a law for regulating the fees of the lawyers.
With this, I am grateful to you. At the end, I will say that I have the highest regard for the judiciary. I pay my respect to the judiciary and I hope our judiciary would be respected more in the near future.